United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge James M. Moody, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:
On August 13, 2008, a Pulaski County jury convicted Petitioner, Ricky Earl White, of murder in the first degree. (Doc. No. 1.) The facts underlying Mr. White's conviction and sentence are as follows:
The trial record reveals that, in the early morning hours of February 2, 2008, Penze Wine was shot and killed in the parking lot of a recording studio in Southwest Little Rock. Gary Wilkins, a friend of Wine's, testified that he, Wine, Carlos Pace, and Eugene Harris were at the recording studio on the night in question. Wilkins further testified that neither he nor anyone he was with had a firearm, that he looked out the door and saw Wine outside by Wine's car, and that a white Cadillac was behind Wine's car. According to Wilkins, he looked away and closed the door, but upon hearing "bam, " he looked back out and saw Wine on the ground, and White, who he knew as "Big Baby, " get in the white Cadillac and drive off. Pace testified that he was in Wine's car with Wine when they struck White's car upon backing out. According to Pace, he and Wine examined White's car and found no damage, but Wine offered to pay for damages anyway. Pace testified that there was no argument, and the "[n]ext thing I know I heard a shot and saw Mr. Wine on the ground." Pace testified that he, Wine, and White were the only persons present when Wine was shot. Pace identified White as the person who shot Wine and testified that after shooting Wine, White said nothing and drove off.
Proffered testimony of Wilkins showed that he had a conviction for possession of a controlled substance. Proffered testimony of Pace showed that he was on probation and had to abstain from consuming alcohol. Pace confirmed that the gathering at the studio was because Wine was about to leave and serve time in Arizona. Anita Ray testified, "I've known [White] to carry a.380 gun." She further testified that the police seized one pistol, but "I know that Ricky [White] carries a gun. He doesn't leave the house without it." She also testified, "I know he has a.380 and I knew he had it around the time of February 2nd." Latonya Miller, who lived across the street from the recording studio, testified that she witnessed the shooting. She heard an argument or discussion outside and saw a white Cadillac, and two men. One of the men was facing away from her, and the other man one [sic] was facing her and holding up his hands. She then saw "fire" and one man fall and hit the ground. According to Miller, the other man got in the Cadillac and drove away. Miller recognized the Cadillac as White's car and testified that she saw White in the parking lot on the night in question.
Testimony at trial revealed that a single.380 casing was retrieved from the scene and that a single.380 bullet killed Wine. Testimony of Dr. Stephen Erickson was proffered to show that at the time of his death, Wine had a trace amount of cocaine ...